Telework Arbitration Victory

An arbitrator ordered the Office of Medicare Hearings and Appeals to approve requests from Attorney-Advisors for a four-day telework schedule.

photo of woman using her notebook computer at homeI am pleased to share this arbitration decision sustaining NTEU’s grievance challenging the Office of Medicare Hearings and Appeals (OMHA)’s denial of a fourth weekly telework day to two Attorney-Advisors in Irvine, California. Although there are other four-day telework arrangements around, this is the first decision in which OMHA was ordered to grant four telework days per week by an arbitrator.

In an office sharing Memorandum of Understanding (MOU) executed by NTEU and HHS in 2014, the agency agreed to “liberalize” telework opportunities for OMHA attorneys and paralegals. For their part, the attorneys lost private offices and entered into office sharing arrangements with the understanding that they would have access to increased telework. Before grieving the denial of their requests for a fourth day, the Attorney-Advisors were already teleworking three days each week. NTEU argued that the agency had not seriously analyzed why it was acceptable for the grievants to have three days a week of telework but not four. The agency claimed that an additional day of telework would result in the disruption of office coverage; that the grievants would not be able to have necessary face-to-face interaction with coworkers, managers, and/or customers if they were granted a fourth day; and that an additional day of telework would result in the grievants being unable to access confidential and sensitive data that was only available in the traditional office setting.

Noted that the agency’s shifting reasons for denying the attorneys’ requests, the arbitrator found that the denial was arbitrary and that the agency did not consider the working conditions faced by the attorneys due to their occupying downsized offices. The arbitrator also found that the agency failed to fulfill its contractual obligation to maximize telework opportunities for the grievants.

This case has national significance because the MOU which formed the basis of the grievants’ argument for increased telework applies to OMHA attorneys and paralegals nationwide who agreed to office sharing and are seeking to maximize their telework.

As you know, at the term table HHS is trying to eliminate telework altogether. This decision underscores the importance of telework as a contractual right, as opposed to the agency having complete discretion in this area.

Author: chapterpresident

I have worked in the FDA since 1990 in a variety of positions. I currently serve as chapter president of NTEU Chapter 254, representing FDA employees in Arkansas, Colorado, Iowa, Kansas, Missouri, Nebraska, New Mexico, Oklahoma, Texas, and Utah.